Adam Katana Shahenza (Suing on behalf of 360 Starehe and Shauri Moyo Estates Nairobi residents) v Cabinet Secretary, Ministry of Transport, Infrastructure, Housing and Urban Development & 3 Others
The bottom line
#If a legal issue has already been decided by a court, you cannot file the exact same case again in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is Res judicata in light of the Mathumbi petition (HC Petition No. 584 of 2014)
The petition is Res judicata and is struck out and dismissed
The court compared the pleadings and prayers in the instant petition with the Mathumbi petition and found the parties, subject matter, issues and reliefs identical. The Mathumbi petition was heard and determined by Justice Mativo, judgment entered for the Respondents on 28th May 2018, and the application for stay dismissed on 8th November 2018 with no appeal filed. All five conjunctive elements of Res judicata under Section 7 of the Civil Procedure Act were satisfied.
Whether Res judicata can be raised as a preliminary objection in a constitutional petition
Yes - it may be raised as a valid defence under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and on the court's inherent power to prevent abuse of court process
The court held that Res judicata is a fundamental principle relating to the jurisdiction of the court and may be raised at any time as a preliminary point of law, including in constitutional petitions, since it is meant to meet the ends of justice.
Whether non-joinder of the 1st and 3rd Respondents in the former suit bars Res judicata
No - the doctrine applies where the former suit was between the same parties or parties under whom they claim, litigating under the same title
The court noted the 1st and 3rd Respondents were not parties in the Mathumbi petition but held this is not a bar, relying on the principle that added parties claiming under the same title are deemed to claim under the persons who litigated, per Explanation 6 to Section 7 of the Civil Procedure Act.
Legal principles established
#- The doctrine of Res judicata applies to constitutional petitions and may be raised as a preliminary point of law at any time
- The addition of parties in a subsequent suit does not defeat Res judicata where they claim under the same title as parties in the earlier suit
Court orders
#- 1.The Preliminary Objections succeed
- 2.The petition is struck out and dismissed as Res judicata
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Article 22 & 23 of the Constitution of Kenya (constitutional petition); the judgment does not expressly cite the enabling provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adam Katana Shahenza (Suing on behalf of 360 Starehe and Shauri Moyo Estates Nairobi residents) v Cabinet Secretary, Ministry of Transport, Infrastructure, Housing and Urban Development & 3 Others", Case Analysis (2020). Petition (number not stated in judgment; filed 25th July 2019). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.